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TRANSFORMING WATER POLICY AND LAW

A Water Manifesto for the Government of India

Ramaswamy R. Iyer

I. Preliminary

This paper will first provide a synoptic account of the problems

relating to water; from that diagnostic statement it will proceed to an

adumbration of the responses needed and the changes in water policy

that they call for; and it will then outline the water law reform that this

requires.

The structure of this paper entails references to the same themes

under four different heads (problems, answers, policies and laws). This

may give an impression of repetitiveness, but the writer hopes that the

readers will find it to be more apparent than real.

This paper is offered not as an academic work but as a practical

contribution recommending actions and policies - a Water Manifesto - for

adoption1.

The essence of this paper will be found in the enumeration of goals

and objectives in section III, the tabular presentation of proposed policy

transformations in section IV and the tabulated summary of

recommended legal changes in part D of section V.

1 The author has written about the reform of water policy and law earlier (see Towards Water Wisdom: Limits,

Justice, Harmony, Sage, 2007; Water and the Laws in India, Sage, 2009; and a Paper on ‘Water: Centre-State

and Inter-State Relations’ written for Task Force No. 6 of the Commission on Centre-State Relations), but this

paper represents a fresh attempt at thinking and formulation.

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II. The Problems: A Synoptic View

It is clear enough that the finite freshwater resources of the world

are likely to come under increasing pressure. While this can be partly

attributed to the growth of population, it is this writer’s view that the

water crisis (if there is going to be one2) is largely one of our own creation

through the gross mismanagement of our (i.e., India’s) water resources;

and that better and wiser use of water may reduce the severity of the

crisis, if not avert it.

That we have indeed grossly mismanaged our water resources will

be clear from the following (brief, compressed, illustrative) enumeration

of problems:

(i) limited, intermittent, unreliable, unsafe urban water supply;

(ii) the enormous generation of waste of all kinds – domestic,

municipal, industrial - in urban areas, and the very partial

treatment of such waste;

(iii) rivers reduced to sewers (e.g., the Yamuna), or turned into

poison (e.g., the Palar in Tamil Nadu); problems of fluoride and

arsenic content in groundwater in some places; contamination

of aquifers by industrial effluents and agricultural residues;

(iv) failure to ensure the fundamental right of safe drinking water to

all; in particular, an inadequate coverage of the poor by the

public system; (the related fact of the absence of sanitation

facilities for large numbers of people);

(v) in rural areas, the persistence of the problem of `uncovered

villages’ (i.e., villages without a nearby source of safe drinking

water), despite the repeated ‘achievement’ of targets for 2 Predictions of a crisis arise from estimates of availability of water and projections of demand for various

uses. The former have recently been called into question, and the latter need to be gone into very carefully.

This paper will not go into these matters. Whether there is going to be a crisis or not, we are certainly going to

face a very difficult situation. Taking that for granted, the paper proceeds to enumerate the problems that we

undoubtedly face.

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coverage; the continuing burden on women and girl children of

having to bring water from distant sources;

(vi) major and medium irrigation systems in disarray, rendering

poor and unreliable service, and characterized by inequities of

various kinds;

(vii) the vicious circle of low irrigation charges, inadequate

allocations for operation and maintenance, poor service, and

the consequent resistance to any increase in charges for

irrigation water;

(viii) the very limited success of `reforms’ such as the Participatory

Irrigation Management (PIM) or Irrigation Management Transfer

(IMT);

(ix) low efficiency of water use in irrigated agriculture, low yields,

and the emergence of water-logging and salinity over the years;

(x) the availability of canal water from major/medium projects

leading to the adoption of water-intensive cropping patterns,

creating unmanageable demands for ever more water;

(xi) the misguided extension of that kind of irrigation to areas such

as Rajasthan;

(xii) inadequate attention to the improvement of productivity in

`rainfed’ agriculture;

(xiii) the persistence and intractability of inter-State river-water

disputes, and the poor functioning of the adjudication system;

(xiv) inter-sectoral, inter-use, and inter-area conflicts over water (for

instance between industry and agriculture, between irrigation

and drinking water, between urban and rural areas, and so on);

(xv) the absence of a nationally agreed statement of principles of

water-sharing (between riparian States, between uses, between

sectors and between areas), and of institutional arrangements

for allocations, priorities, and the prevention and/or settlement

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of disputes (except for the adjudication provision for inter-State

river-water disputes);

(xvi) the enormous difficulty of institutionalising any kind of holistic

overview or coordination at the river basin level because of

strong resistance by the State Governments to what is perceived

as a central imposition;

(xvii) the environmental / ecological impacts of big water-resource

projects, and the unsatisfactory nature of EIAs;

(xviii) the displacement of people by such projects and the general

failure to resettle and rehabilitate project-affected persons;

(xix) the unplanned explosion of groundwater exploitation from the

1980s onwards, leading to aquifers getting depleted and/or

contaminated, and the absence of any regulation;

(xx) the indifference or hostility often faced by non-governmental

initiatives for local water-harvesting and micro-watershed

management;

(xxi) the tardy progress of devolution of local water management to

PRIs; and

(xxii) questionable approaches to ‘flood-control’, and mounting flood-

related damages and expenditures on relief, with hardly any

disaster-preparedness.

That is a comprehensive indictment of what we have done or failed

to do in relation to water. It may appear to be ‘negative’, but regrettably,

it cannot easily be contested.

(On top of that bleak picture, we have now to superimpose the

complexities introduced by climate change. While the IPCC Working

Group report of June 2008 tells us that there will be increase in

precipitation in some areas, increased incidence of drought in some other

areas, and increased variability in precipitation, we do not know exactly

what will happen, when, and where. This needs to be studied and

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responses formulated. This paper will make no further reference to

climate change.)

III. Responses: An Outline

An Agenda for Action

What should we do in response to the problems identified in the

preceding section? Quite simply, we have to reverse each of those

negatives into a corresponding positive statement. In that spirit, the

following goals and objectives (tersely stated and not in the same

sequence as the previous section) are put forward as an agenda for

action, for the consideration of all concerned:

(i) make the theoretical concept of the right to water (as life-

support) a practical reality;

(ii) in all other uses of water, restrain the growth of demand with

reference to availability;

(iii) promote efficiency and economy in water-use (including

multiple use of the same water) and resource-conservation;

foster a consciousness of a scarce and precious resource;

(iv) establish principles and institutional arrangements for a system

of equitable, socially just and functionally appropriate water

entitlements for all uses;

(v) lay down principles, priorities, processes and machinery for the

obviation or quick resolution of conflicts between uses, sectors,

areas, States, etc (providing for all routes such as negotiation,

mediation, conciliation, arbitration and adjudication);

(vi) improve the existing adjudication process for inter-State river-

water disputes by speeding it up, changing the present

adversarial, court-like procedures to a constructive,

collaborative style, recognizing the locus standi of actual water-

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users, and ensuring the acceptance of the results of

adjudication by all parties;

(vii) revive and restore dying rivers, and protect other rivers from

decline;

(viii) promote rainwater-harvesting and micro-watershed

development throughout the country to the maximum extent

technically feasible without adverse effects, and in harmony

with the overall basin hydrology;

(ix) build basin-level holistic overview and coordination

mechanisms from the village watershed committee upwards

through a series of nested, participatory institutions, ensuring

the consent and representation of water-users at every level,

PRIs, and State Governments;

(x) formulate a series of area-specific answers for the needs of arid,

drought-prone or water-scarce areas, the stress being on local

solutions, recourse to external water being exceptional, and

avoiding `development’ of the water-intensive kind in such

areas;

(xi) arrest as quickly as possible the present disastrous over-

exploitation of groundwater;

(xii) put large projects (where these are found necessary as a last

recourse) through a stringent evaluation procedure (making

EIAs truly independent, professional and rigorous; going beyond

the conventional Cost-Benefit Analysis into qualitative

assessments; adopting the criteria of minimum displacement

and least environmental impact; and fully involving, right from

the earliest stages, those who are likely to be affected);

(xiii) revise the National Rehabilitation Policy to make it more just

and humane, and to give the affected people the first claim on

the benefits of the project or activity in question;

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(xiv) help and strengthen the capabilities of people to be fully

prepared in advance for floods when they occur (as they will), to

cope with them, to derive benefits from them and to minimise

damage;

(xv) arrest and reverse the loss of good water to pollution and

contamination; minimize the generation of waste, and treat and

recover as much of waste water as possible for acceptable uses;

(xvi) establish a constructive working relationship between the state

and civil society at all levels, and in particular between Water-

Users’ Associations and Irrigation Departments, and between

watershed committees and Panchayati Raj Institutions; and

(xvii) ensure a voice for women in water-management and a proper

place for them in water-governance institutions.

Some Explanatory Notes

Each of those brief and perhaps cryptic items on the agenda needs

to be extensively elaborated. That is not feasible in this paper, but short

annotations on some of the recommendations are offered below.

(a) Making the right to water real would require among other things

the imposition of an obligation on water supply agencies (State

Government agencies or PRIs or city municipal corporations or

parastatals or private entities) to ensure that right; and the acceptance of

a final last-resort obligation by the State Government.

(b) Restraining the growth of demand for water would entail the

following:

• bringing about substantial improvements in the agricultural use of

water over present low levels of efficiency (35 to 40% as estimated

by the National Commission on Integrated Water Resource

Development Plan), and in yields from irrigated agriculture (beyond

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the Commission’s modest projection of 4 tonnes per hectare by

2050);

• ensuring that government policies do not encourage water-

intensive crops everywhere, and that irrigated agriculture is not

extended to wrong areas;

• insisting on the multiple use of the same water by industry, and

moving towards the long-term goal of zero effluents (or 90%

recycled water with only 10% fresh make-up water);

• setting more modest norms for urban water supply (no more than

100 lpcd), ensuring the more equitable distribution of the supplied

water, severely discouraging profligate use by some through steep

tariffs and penalties and perhaps a denial of service above a

certain limit;

• substantially reducing the use of freshwater for transporting

human waste;

• minimizing, if not eliminating, waste in all uses of water

(agricultural, industrial, commercial, institutional, municipal,

domestic, recreational), and in the operation of water-supply and

canal systems; and

• mounting a national campaign to promote an awareness of water

as a scarce and precious resource to be economically used,

protected and conserved, and enlisting social sanctions against

wasteful use.

(c) The working out of principles and institutional arrangements for

allocations, priorities, dispute-resolution, etc, will be an arduous exercise

to be undertaken perhaps at the State Government level, but preferably

working upwards in a nested and federating manner from villages or

micro-watersheds to sub-basins or basins. (Where basins or sub-basins

cross State boundaries, inter-State arrangements will be necessary.) We

can look at best practices elsewhere in the world (say, France, Holland,

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South Africa, Australia; also the European Water Framework Directive).

(As we shall see later, the Maharashtra Water Resources Regulatory

Authority is not a good model to follow.)

(d) Improving the functioning of the existing adjudication system

under the Inter-State Water Disputes Act 1956 (as amended in 2002)

would entail some additional amendments to the ISWD Act. This will be

dealt with in the section relating to legal reforms.

(e) The protection of rivers and the revival of dying ones will call for a

transformation of attitudes towards rivers3.

(f) The large number of tubewells (some 20 million), mostly privately

owned and operated essentially for ‘self-supply’, makes the regulation of

groundwater use extremely difficult. However, the task cannot be given

up as hopeless. Apart from indirect control through the electricity tariff,

perhaps the best course would be to move towards community

management, but this requires the delineation of aquifers and the

mobilisation of the users (farmers and others) into associations for the

sustainable management of aquifers. The idea has been mooted, but has

not been seriously pursued so far. This is no doubt fraught with difficulty

but it needs to be tried.

The other recommendations will not be elaborated here. The point is

that many of them will call for administrative, governance and

institutional reforms and for the designing of new institutional

arrangements where none exist.

Exploring a Deeper Understanding

3 If legislation is to be attempted for the protection / conservation of rivers, as is often advocated,

certain basic propositions about rivers will need to be kept in mind: for instance, a river must flow, if it is to

cleanse and purify itself; a river needs space for accommodating floods when they come, as they will, and the

floodplain must be recognized as an integral part of the river; a river is part of a larger ecological system, and

therefore the protection of a river entails the protection of the ecological system; and so on.

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However, going beyond administrative, governance, and institutional

reforms, there is need for a deeper understanding of what has gone

wrong. The following is an attempt to encapsulate this.

(i) There is a failure to understand the uniqueness, complexity and

multi-dimensionality of water4.

(ii) There is a tendency to think of water as just another commodity

and apply the economist’s language of ‘demand’ and ‘supply’ to water.

The market philosophy teaches us to think that if we ‘demand’ water, a

supply response will follow. It is this which leads to an ever-growing,

competitive unsustainable demand for water in all uses. We are asking

for water that does not exist. It is necessary to reverse the usual practice

of proceeding from projections of demand to supply responses, and start

with an acceptance of finite availability and proceed to limit demand.

(The reference here is to economic demand and not basic life need.)

(iii) Unfortunately, the ‘demand’ for water is part of an overall demand

for goods and services celebrated by a conception of ‘development’ or

‘growth’ that entails an unsustainable and destructive onslaught on

natural resources and on Planet Earth. Changing the approach to water

implies changing the approach to ‘development’.

(iv) Underlying that conception of development is a sick relationship

between humanity and nature based on technological hubris and a

Promethean approach of ‘conquest’ or ‘subjugation’ of nature, the

catastrophic consequences of which are now becoming evident.

4 Cf the following extract from the writer’s Water and the Laws in India, Sage Publications, 2009 (p.568):

“Water is clearly an essential life-support substance, needed for drinking, cooking and cleansing (one’s

person, clothes, habitat). It is also a requirement for economic activities, such as agriculture (irrigation) and

industry; for navigation; and for municipal uses such as sanitation or firefighting or for institutions such as

hospitals. It has (partly) a fearsome aspect in the form of floods. It is an inextricable part of our society,

culture and history; and it is also regarded in many cultures as a sacred resource or as a divinity in itself.

Water sustains not merely human life, but also the lives of animals and birds; and it sustains and is

sustained by the ecological system of which it is an integral part. It plays a crucial role on Planet Earth.” For a

fuller account, see the Preamble to Towards Water Wisdom: Limits, Justice, Harmony, Sage 2007.

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(v) The pursuit of ‘development’ so conceived, the religion of ‘growth’

and the worship of the Market, are accompanied by an unconcern for

justice and equity, an indifference to the sufferings of the poor, the

marginalised and the disadvantaged, and the disappearance of

compassion.

(vi) The dominance of engineering and economics (separate or

combined) has meant that we are offered a choice of state or market. The

State Governments (in particular their engineers) want and assert state

control over water resources so that they can build big projects and

“push rivers around” (to quote a famous remark of an American water

manager5). The economists (or some of them) want water to be left to

market forces, and recommend private investment in water projects, the

privatization of water services, economic pricing based on ‘full cost

recovery’ and so on. However, there is a third possibility, namely, that

water is a Common Pool Resource to be managed by the community or

held in public trust by the state for the community. The advocacy of this

view is being heard increasingly, but it has not yet made much headway.

IV. Towards a New National Water Policy

Needed: A Transformation

It is clear that over and above governance and institutional reform, a

major transformation is called for. The present writer tried to capture

this through a triad of terms (limits, justice, harmony) leading to a fourth

(water wisdom) in his book Towards Water Wisdom: Limits, Justice,

Harmony (Sage Publications, 2007). This was explained in the preface to

that book: “Its plea is encapsulated in the three terms of the title: Limits,

Justice, Harmony. Each of these has multiple meanings and all three are

inter-related. `Limits’ on water-use are necessary for ensuring equitable

5 Quoted by Ken Conca in Governing Water, MIT Press, 2005.

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sharing (`justice’) and for avoiding conflicts with others and with nature

(`harmony’); `justice’ means justice to other users of the resource, to

those whose lives and livelihoods are likely to be disrupted by our plans,

to other forms of life, and to future generations (that harks back to

`limits’ and forward to `harmony’); and `harmony’ means harmony with

fellow human beings within and beyond political borders and with nature

(that refers us back to `limits’ and `justice’). Everything is connected with

everything else; and the water crisis is merely a part of a larger crisis of

`development’.”

However, that is too large a subject for this paper. In the context of

the present paper, the important point is that in addition to

administrative and governance reform, policy changes are needed. The

existing National Water Policy 2002 needs to be replaced by a new

National Water Policy.

Elements of a New National Water Policy

This paper cannot provide a draft of a new National Water Policy, but

it can put forward some suggestions as to its orientation and principal

elements.

Orientation:

Central to the Policy Statement should be the holistic and wise use of

water (which is a better, if less catchy, formulation than the currently

fashionable term ‘Integrated Water Resource Management’), with due

concern for social justice, equity, compassion and ecological

sustainability. In other words, the Policy Statement should be governed

by the framework of ‘limits, justice, harmony, leading to wisdom’ referred

to earlier.

Principal elements:

Many of the action points and changes listed in section III above

involve major departures from past policies and approaches. These will

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need to be explicitly stated in the Policy Statement. They will include the

following shifts of primacies or approaches among others:

FROM TO

Promethean approach of conquest

of nature

Learning to live in harmony with

nature (being guided by the

Precautionary Principle in

interventions, adopting a

Bhagiratha-like prayerful spirit

towards nature)

“Pushing rivers around” Respecting rivers (see footnote 3

above).

Dominance of economics /

engineering

Subordination of economics and

engineering to ecology and equity

Demand projections leading to

supply-side responses

Recognition of finite supply leading

to restraining the growth of

demand

Adversarial adjudication of river-

water disputes; claims and

counter-claims

Constructive resolution; equitable

sharing

An absence of specific provisions

relating to inter-use, inter-area or

inter-sectoral conflicts

Principles and institutional

arrangements; equitable sharing

Large centralised techno-centric

‘water resource development’

projects

Extensive local decentralised small-

scale people-centred water-

harvesting initiatives

Large projects as first choice Large projects as last choice

Top-down project planning and

implementation, poor EIAs, forced

displacement, poor rehabilitation

Fully participatory planning and

implementation, minimum

environmental impact and least

displacement as project-selection

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criteria, strengthening EIAs, no

forced displacement, ‘free informed

prior consent’, effective

rehabilitation, statutory right to

benefits

Discrete projects, schemes or

activities

Holistic, coordinated overview at

the basin or sub-basin level (in a

participatory, consultative,

representative manner)

Private ownership of groundwater

and uncontrolled extraction

Groundwater as CPR, community

management of aquifers, regulated

use

Water as economic good,

predominance of irrigation

Water as life-support first,

livelihoods next, everything else

afterwards

“Define property rights in water,

make them tradable”

No property rights, only use rights

in water, very limited tradability

Generalised advocacy of water

rights

Fundamental ‘right to water’

(including right of access to water

sources) to be distinguished from

and privileged over economic ‘water

rights’

Corporatisation, privatisation of

water services

Improved public provision (water

supply prime responsibility of state,

particularly PRIs)

Supremacy of markets; acceptance

of outcomes of market forces as

having implicit validation

Wariness towards water markets,

recognition of inherent flaws and

injustices in their outcomes,

regulation of markets

Sovereign powers or ‘eminent Public Trust doctrine (state as

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domain’ of the state holding natural resources in trust

for the community)

State control Community management

Women as fetchers and carriers,

household drudges

Voice to women in water

management at every level

Dominance of Central and State

Governments

Effective devolution to local level,

‘subsidiarity principle’, i.e.,

decisions at a level no higher than

necessary

That is an illustrative and not an exhaustive table. Besides, there will

be other elements in the policy statement which cannot be put into that

table, for instance, providing a policy framework for a system of

allocations or entitlements, including institutional arrangements to make

it operational.

It will be clear that the proposed new national water policy will be

vastly different from the NWP 2002.

If a reasonably good national water policy can be drafted and adopted,

then that Policy can be made into a National Water Act. However, why do

we need a National Water Act? We shall return to that question.

V. Water Law Reform

Threefold Transformation

The governance and institutional reforms and policy changes

outlined in the earlier sections of this paper will run into difficulties with

the present legal dispensation in many ways. It follows that a

transformation of law will have to accompany and support the intended

transformation of water policy.

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The transformation that this writer has in mind is threefold. First,

a full understanding of the nature of water in all its complexity and

multi-dimensionality (see footnote 4 above) must be the bedrock on

which the entire structure of laws relating to water from the Constitution

downwards rests; that is not the case at present. Secondly, while water

can and must be dealt with at the State and local levels, it seems

desirable that there should be a minimal commonality of positions on

certain basics relating to water across the States and at the Central level.

Thirdly, there must be changes in the existing laws or new laws to

support the proposed policy changes.

That threefold prescription translates as (i) declarations relating to

water in the Constitution; (ii) a National Water Act; and (iii) changes in

particular laws or new laws. We shall deal with the last item, i.e., specific

legal changes, first, and then proceed to the others.

A. Specific Legal Changes

(i) Right to Water, Water Rights

In India, the right to water6 has been treated by judicial

interpretation as part of the right to life. However, it seems desirable that

there must be an explicit constitutional recognition of the right to water,

as there is in some countries7. Once this is done, it would follow that the

state has a responsibility to ensure that this right is not denied to any

citizen or group of citizens, but it might be useful to make that

responsibility also explicit.

When we talk about fundamental rights, we must include not

merely the right of all to safe drinking water, but also the rights of access

6 The reference is to water as essential to life, i.e,, the basic water requirement for drinking, cooking and

washing, and not water for economic uses..

7 See Upendra Baxi’s chapter on the human right to water (Chapter 7) in Water and the Laws in India, ed.

Ramaswamy R. Iyer, Sage 2009.

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of certain tribal and other communities to forests, mountains, rivers, etc,

i.e., the natural resource base on which they have for centuries depended

for sustenance. This is partly recognized by the Provisions of the

Panchayats (Extension to Scheduled Areas) Act 1996 – popularly known

as PESA, but the recognition needs to be more general and explicit.

There can be no fundamental right to irrigation water or water for

industrial use: these are (economic) use rights. The term ‘water rights’

usually refers to these rights. Between a fundamental right (life-right)

and a non-fundamental use-right, the former must clearly take

precedence over the latter; and the economic rights of some must never

be allowed to endanger the fundamental rights of others. It seems

desirable to give these propositions formal legal expression.

(ii) Legal Support for Civil Society Initiatives

There is a potential for conflict between the unqualified assertion of

the state’s sovereign powers (or what is often loosely referred to as

‘eminent domain’) and the encouragement of civil society initiatives,

which is now part of accepted official policy. If it is indeed the policy of

the state to promote such initiatives, then legal changes must be made to

enable and facilitate the role of civil society. We must return to this

subject, but at this juncture it is necessary to refer briefly to the question

of ownership of water.

Who owns water? Is water state property, or private property, or a

common property resource? State Governments tend to regard rivers,

streams and lakes as belonging to them; this is even stated in some State

laws. The view that water is an ‘economic good’ is generally accompanied

by the related view that it is private property. Social activists and

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mobilizers and NGOs campaigning for the empowerment of the ‘people’

are likely to hold the view that water is a common property resource8.

This is a major and complex issue; it is not proposed to enter into an

elaborate discussion of that subject here, because the crucial question

here is not whether the state’s claim of ownership of natural resources is

valid, but whether the assertion of state control over water in India (in

colonial times and later) is compatible with the empowerment of civil

society. If indeed we believe in such empowerment, then the people or

civil society or community must be enabled to play their role. It follows

that the sovereign power which hinders this needs to be moderated.

However, the state too has important roles to play in relation to water

and must be enabled to play them (constructively, and in cooperation

with civil society). How then can we empower the state and the people at

the same time? The answer to that conundrum lies in the public trust

doctrine.

(iii) Public Trust Doctrine

Under this doctrine, the state is perceived of, not as owning the

water resources of the country, but as holding them in trust for the

people (including future generations). As a trustee, the state will of

course have to be empowered to legislate, regulate, allocate, manage, and

so on, and all this must involve a degree of control. However, the role of

sovereign as trustee, unlike that of a sovereign simpliciter, is not

inherently confrontational, and may permit a constructive relationship

between the state and civil society.

8 The law in India recognizes ‘private property’ in the case of groundwater, where the ownership of land

carries with it the ownership of the water that lies under the land. This creates serious difficulties for the

regulation of groundwater. Besides, this difference in law between surface water and groundwater (private

property being recognized in the latter case but not in the former)) is a legacy of the past which is no longer

tenable.

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It would appear that after M.C.Mehta v. Kamal Nath and Others9

the public trust doctrine is indeed part of Indian law, but the position is

not entirely clear. In the Coca Cola (Plachimada) case, the first judgment

(single judge) invoked the public trust doctrine and went in favour of the

panchayat, but on an appeal by the Company the Division Bench

overturned the first judgment and allowed the Company to extract a

certain quantity of water; the implications of this for the public trust

doctrine are not clear. The case is now before the Supreme Court and

one wonders whether the judgment, when it comes, will have something

to say on the applicability of the public trust doctrine or will decide the

case on other grounds. Meanwhile, recent reports say that in another

case (Pudussery, Pepsi Cola) the Supreme Court has upheld the High

Court’s Order allowing the Company to extract water on certain grounds

(industrial area, government licence, etc). We need not go into the details

of that case - there are differences between that case and the Plachimada

case - but the point is that it is by no means clear that ‘public trust’ is

firmly a part of Indian law. One can only hope that this will be strongly

re-affirmed by the Supreme Court in the Plachimada case.

Incidentally, it seems to this writer that the public trust doctrine

must apply not merely between the state and civil society, but also

between present and future generations, between humanity and other

forms of life, and between humanity and Nature in general. The doctrine

needs to be widened and given an ecological / philosophical

underpinning.

(iv) Inter-State River Water Disputes

There is general dissatisfaction with the prevailing adjudication

process under the ISWD Act, on three grounds: delays at every stage;

9 “These resources meant for public use cannot be converted into private ownership. Thus the public trust

doctrine is a part of the law of the land." (1997) I SCC P-388/389)

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adversarial proceedings; and uncertainty of compliance with the final

decision and therefore the absence of finality. (The objection to

adjudication itself as a means of settling a dispute need not be discussed

at length. Article 262 and the ISWD Act do not force adjudication on the

disputing parties, nor do they preclude recourse to negotiation,

conciliation or mediation; but when all these efforts fail, disputes still

have to be resolved, and a last-resort mechanism is needed for the

purpose. That is what Article 262 and the ISWD Act provide.)

(a) Delays at every stage certainly presented a serious problem in

the past, but the Amendments of 2002 have substantially taken care of

this problem by prescribing time-limits at various stages. However, there

are two loopholes that need to be plugged through further amendments:

one, an open-ended availability of time for the Tribunal’s supplementary

or clarificatory report in response to a reference back to it after its

Award; and two, the absence of any time-limit for the notification by the

Central Government of the (Interim or Final or Supplementary) Orders of

the Tribunal. For the former, there is a limit of one year but that year can

be extended indefinitely; a limit (of say, six months) needs to be

prescribed for such extension. As for the latter, it may seem trivial, but

the possibility of delays in notification cannot be ruled out. A time-limit

(of ten days or two weeks) should be laid down for this.

(b) Adversarial proceedings characterise all litigation in the courts,

and as ISWD Tribunals function like courts, their proceedings too are

subject to this malaise. However, the Tribunals are not obliged to adopt

the court style of functioning. Instead, they can adopt a consultative,

inter-active, fact-finding, solution-exploring Committee-style procedure,

while retaining the ultimate responsibility for giving a judicial decision.

In fact the Tribunals can go further and become forums for conciliation

as well as for adjudication. The Tribunals can presumably modify their

21

own procedures and style, but if necessary, they can be specifically

empowered to do this by an amendment to the ISWD Act.

Incidentally, the disputing parties under the ISWD Act are the

State Governments concerned and not the people. The Tribunal does not

hear the farmers and other water-users in the basin. It seems very

desirable that any reform of the present system of resolution of inter-

State river-water disputes should bring the people in as interested

parties. ‘People’ in this context should encompass different categories of

water-users, as also those who are likely to be affected by the projects

that the Tribunal takes note of.

(c) The problem of non-compliance is indeed a serious one. Though

the Award of an ISWD tribunal is said to be final and binding, there are

no means of enforcing compliance with it. If a State Government refuses

to obey the Order of such a Tribunal, there are not many courses open to

the other parties to the dispute or even to the Central Government. The

Centre can give directions, but if these too are not complied with, what

sanctions are available? Article 356 (Central rule) is an extreme measure

that cannot be lightly used, and in any case, what will happen when a

popular government returns? The Sarkaria Commission had

recommended that the words “final and binding” in the Act should be

buttressed by conferring upon the Tribunal’s Order the status of an

Order or Decree of the Supreme Court, and this has been done through

the 2002 amendment. However, this seems to have had no perceptible

effect. (Perhaps the Supreme Court will make a pronouncement in this

regard when it delivers judgment on the Special Leave Petitions in the

Cauvery case.)

(d) The general dissatisfaction with the functioning of the

adjudication system, and in particular, the absence of finality, had led to

the recommendation by some that that the ISWD Act should be repealed

and inter-State river-water disputes brought within the original

22

jurisdiction of the Supreme Court. Such a suggestion had been made by

the National Commission to Review the Working of the Constitution, and

more recently, the eminent lawyer Fali Nariman, has also advocated

this10. This arises largely from a sense of exasperation with the manner

in which adjudication under the ISWD Act has been functioning. The

suggestion is based on the system prevailing in the USA. However, in

such cases the US Supreme Court appoints a Special Master who goes

into the dispute in detail, hears the parties, and gives his findings which

then go back to the Supreme Court for a final decision. In other words,

the Special Master in the US does what the tribunal does in India. There

seems to be no particular advantage in replacing tribunals by a Master.

However, it is certainly desirable to bring in the Supreme Court – not in

original but in appellate jurisdiction. This is explained below.

The most important deficiency in our system is that the Tribunal’s

decision is a single, non-appealable verdict. If one or more parties are left

with a sense of grievance or injustice, the aggrieved party has no remedy

apart from a reference back to the same Tribunal within three months.

With a view to providing a better remedy, and at the same time improving

the prospects of better compliance with the final decision, this writer has

been proposing (for several years, though without attracting any

attention) that in partial modification of the bar of jurisdiction of the

courts, the ISWD Act should be amended to provide for an appeal to the

Supreme Court against an ISWD Tribunal’s Order.

This suggestion is likely to be objected to on the ground that every

case will go to the Supreme Court, resulting in further delays. The

answer is that every case does go to the Supreme Court even now, on

some issue or the other, and the Supreme Court rarely ever says: “We do

not have jurisdiction; go back to the Tribunal”, nor does it carefully

refrain from entering into water-sharing issues. In other words, the bar 10 See Nariman’s chapter ‘Inter-State Water Disputes; A Nightmare’ (Chapter 3) in Water and the Laws in

India, ed. Ramaswamy R. Iyer, Sage, 2009, and the discussion by the editor on pp 576 et seq.

23

on the jurisdiction of the courts has been ignored by the Supreme Court

itself.

It is clear that the parties do wish to go the highest Court in the

land, and it seems better to accommodate that wish by providing for an

appeal to that forum. This will at least remove the ground for a sense of

grievance.

(e) Finally, there is the point, often made, that there is no

nationally approved statement of water-sharing principles to guide the

tribunals. The Ministry of Water Resources did attempt a draft

statement of water-sharing principles at one stage and the draft went up

to the National Water Resources Council more than once, but the wide

divergence of views among the States made it a non-starter; it remains in

limbo. There seems to be little likelihood of an agreed statement

emerging in the foreseeable future. Meanwhile disputes have to be dealt

with, and successive Tribunals have referred to the Helsinki Rules, case-

law in India and elsewhere, reports of earlier Tribunals, and so on. By

and large, the principle adopted by the Tribunals is that of equitable

apportionment. Even if a national statement on water-sharing had been

agreed upon, it could hardly have laid down any principle other than that

of equitable apportionment or sharing, and it would necessarily have

been a very general statement needing to be elaborated in detail in each

case. However, this is not an argument against such a declaration of

principles, if that is found feasible.

(v) Basin-level Overview/Coordination

There is a need for a holistic ecological/ hydrological overview and

harmonization at the river-basin or sub-basin level, but at present there

are no institutional arrangements for this. The Central Government has

not made much use of Entry 56 in the Union List, and the River Boards

24

Act 1956 enacted under that Entry has been a dead letter, largely

because of negative perceptions by the States. This is a political and not

a legal or constitutional problem. The possibility of making greater use of

Entry 56 and of re-activating the River Boards Act needs to be explored.

However, the RBA as it stands is an inadequate instrument for the kind

of holistic overview that is needed. It is interesting that recently, when

the need was felt for that kind of institutional arrangement in relation to

the Ganga, action was taken under the Environment Protection Act. That

is not a wholly satisfactory solution. Ways and means must be found for

the proper use of Entry 56, and of revamping the RBA.

(vi) Should Water be moved to the Concurrent List?

A linked question is whether water should be put into the

Concurrent List by a constitutional amendment. The short answer, on

logical grounds, is ‘Yes, certainly’, but politically, this is a very difficult

thing to do. Please see Annexe I for a fuller discussion.

(vii) Water-Use: Allocations, Regulation, Principles, Priorities, Dispute-

Settlement

At present, only inter-State river water disputes are explicitly dealt

with by law, and there too, only adjudication is provided for. We need

principles and institutional arrangements for dealing with allocations,

priorities, dispute settlement, and so on, covering all uses of water, and

inter-use, inter-area and inter-sector conflicts. This has already been

referred to in earlier sections. On the legal side, what is called for is a

new law or a set of inter-related laws in each State, enshrining the

principles and providing the basis for the institutional structure. In this

context, three things need to be kept in mind: broad conformity to the

national policies and laws, while reflecting and responding to local

25

specificities; inter-State coordination/integration at the basin level; and

accommodating and supporting local self-governance in accordance with

the 73rd and 74th constitutional amendments and the devolution as

envisaged in Schedules 11 and 12. As already indicated, the

Maharashtra Water Resources Regulatory Authority Act is not a good

model11. The nested, federated cooperative structure in the dairy sector,

with suitable changes to incorporate the basin idea, might be a better

model.

(viii) Regulating Groundwater Use

The existing difference in law as between surface water and

groundwater is a relic of history which must be discarded. The

recognition of private property in groundwater based on land-ownership,

deriving from British common law, must be abandoned12. If the public

trust doctrine is sound in relation to surface waters, it is equally sound

in relation to groundwater, and must be so extended. In other words,

groundwater, like surface water, must be regarded as a community

resource held in public trust by the state. (This will call for new national

legislation.)

It does not follow that groundwater must be managed by the state.

We must move towards the community management of CPRs, subject to

the role of the state in laying down principles, providing institutional

mechanisms for the resolution of disputes, etc. As mentioned earlier,

aquifers will have to be delineated, and aquifer-users’ associations built

up. They will have to be given legal backing, as in the case of Water

Users’ Associations under the PIM Programme. This will have to be State-

level legislation, with arrangements for inter-State coordination where 11 See relevant paragraph in Annexe III.

12 If the linking of ownership of groundwater to the ownership of land derives from common law, then the de-

linking may not require amendments to existing laws such as the Indian Easements Act 1822 or The Transfer

of Property Act 1822. A new law stating that groundwater is CPR and asserting the public trust principle may

be needed.

26

the aquifer cuts across State boundaries. Regulation of use will then be

through a combination of legal restrictions and social sanctions.

(ix) Restoring Tanks and other Traditional Systems

The continuing importance of tanks and other traditional water-

management systems in the rural economy and way of life and the

imperative of restoring them to their old position to the extent possible is

an issue of policy with economic, social, political and cultural

dimensions. This will call for action primarily at the local level on the

part of PRIs and civil society institutions, with strong support at the

State level. It is not clear that this requires any major legal reform.

However, a review of the laws relating to local and small-scale water

management in each State may be called for. (For instance, there is the

Tamil Nadu Protection of Tanks and Eviction of Encroachments Act

2007. There may be need for some legislation of this kind in each State,

but what is needed will vary from State to State.) The Central

Government has of course a responsibility for the preservation of the

water resources of the country, but here again, the role it will need to

play will depend on local circumstances.

(x) Big Water Resource Projects

A Statutory Clearance for Dams? The suggestion already made,

that large ‘water resource development’ (WRD) projects should be the last

choice and not the first, is a policy change; this may not require a new

law, though the desirability of a statutory clearance for large dams or

barrages or other structural interventions in a river (apart from

clearances under the Environment Protection Act 1986 or EPA and the

Forest Conservation Act 1980 or FCA) needs to be considered. This will

seem to run counter to the prevailing climate of opinion in favour of

‘liberalisation’ and to display an ‘old mindset’. Shades of licence raj,

27

permit raj! (If we do wish to revive dying rivers and protect rivers in good

health from declining, as is often stated, then we cannot keep diverting

waters from them and destroying the river regime downstream: a dam

virtually kills a river. Please see footnote 3 above.) It may be pointed out

that in the USA a licence is needed for a dam. This idea is merely flagged

for attention and will not be pursued further here. However, it is very

important that the two statutory clearances that do exist (under the EPA

and the FCA) are made really effective, and a new clearance instituted for

the displacement of people.

Improving the clearances under the EPA and FCA: The instrument

used for clearances under the EPA is an Environmental Impact

Assessment (EIA). The entire system in this country in this regard is

notoriously unsatisfactory. Many changes are needed, including (a) a

statutory backing for the regime; (b) sector-wide impact assessments

prior to the planning of individual projects; (c) choice of the

(environmental, social) least-cost option; (d) regional/basin carrying-

capacity assessments; (e) coordination of environmental, forest and

wildlife-related clearances; (f) serious action on violations; and (g)

stringent post-clearance monitoring. One hopes that some or all of these

changes will take place following the two new initiatives recently

proposed by the Minister for Environment and Forests, namely, a

National Environment Protection Authority and a Green Tribunal.

However, even more important than all this is the need to make

EIAs truly professional, objective and independent. On the analogy of the

medical and accountancy professions, EIA should also become a

profession with its own statutory charter, professional council and

disbarment procedures. It should be truly independent of the proposers

and approvers of projects. The nomination of the EIA consultant for a

project and the payment to that consultant should be divorced from the

project authorities; the Appraisal Committee should reflect relevant

expertise and experience, represent a diversity of concerns and interests,

28

and be constituted by an independent authority, say the proposed NEPA;

and so on. All this applies equally to clearances under the FCA.

Making clearances under the EPA and FCA more rigorous and

stringent would be criticised by many as ‘negative’, anti-development’,

‘impediments in the way of projects’ and so on. The short answer to that

is that major interventions in nature with serious impacts and

consequences ought not to have an easy passage to approval; that a

degree of ‘delay’ and ‘difficulty’ is necessary and salutary; and that a

clearance procedure that stands reduced to a formality and fails to stall

or reject a bad project is a mockery of the EPA.

Displacement and Rehabilitation: Apart from environmental

impacts, the other major problem with big water projects is that they

displace people. A debate on this subject has been going on for several

decades, and there have been many writings calling for a national

rehabilitation policy and setting forth the principles that should be

enshrined in such a document13. We are past that stage now. We no

longer have to call for a Policy or an Act. There is now a Policy in force: in

October 2007 the Government of India notified the National Resettlement

and Rehabilitation Policy 2007. They followed it up with the introduction

into the Lok Sabha of two Bills: the Rehabilitation and Resettlement Bill

2007, and related to that, the Land Acquisition (Amendment) Bill 2007.

These have lapsed and have to be reintroduced in the new Lok Sabha.

There have been several critiques of these pointing out serious

deficiencies. The Bills need substantial revisions14.

(xi) Coping with Floods

(xii) Pollution Control

13 See this writer’s article ‘Towards a Just Displacement and Rehabilitation Policy’, Economic and Political

Weekly, 28 July 2007.

14 See this writer’s article ‘A Slow but Sure Step Forward’ in The Hindu, 7 August 2009, reproduced in

Annexe II.

29

In respect of these two matters, policy changes, governance reforms and

more effective enforcement may be called for (as indicated in earlier

sections), but no major legal reforms seem to be indicated.

(xiii) Restraint, Economy, Conservation

Restraining the growth of demand for water and preventing it from

getting out of hand, promoting economy in water-use, avoiding waste in

all uses, getting the maximum benefit out of each unit of water, ensuring

the careful conservation of the resource: all these are matters for

advocacy, education, promotion of awareness, and a transformation of

thinking and attitudes, and not necessarily for legal reforms. (To an

extent, systems of entitlements, allocations and priorities, institutional

mechanisms such as River Basin Organizations and regulatory

authorities, and of course pricing, can play a role in bringing about the

needed transformation. Perhaps the prescription of a Fundamental Duty

in this regard in the Constitution, as proposed later in this paper, will be

of some help.)

(xiv) Empowering Women in Relation to Water

Here again, what is called for is a transformation of thinking and

attitudes. It is not clear that legislation is needed or will be useful.

B. A National Water Act

Going beyond specific changes, this paper proposes a National

Water Act. The suggestion is generally received with scepticism or even

strong disagreement. The objections arise from a reluctance to add more

laws to the statute book; the feeling that this is a typical bureaucratic

suggestion; the cynical suspicion that this will be one more law that will

not be obeyed; and the apprehension that a National Water Act would be

a centralising move. Short answers to those objections are the following.

(1) We cannot go by a general reluctance to add more laws; we have to

30

consider in each case whether the proposed new law is necessary and

desirable. (2) The origin of the suggestion is not the bureaucratic past of

the writer, but a study of international experience. (3) Failures of

enforcement do need to be dealt with, but the answer to the problem of

enforcement of laws is not an absence of laws. (4) The fear of

centralisation arises from a misunderstanding of the nature of the

proposed national water law. However, this needs to be gone into more

elaborately.

At the outset, the fear of centralisation needs to be laid to rest. The

intention is not to shift water management to the Centre. Water will

continue to be managed at the level of the State Governments, subject to

the devolution of local water management to panchayats and nagar-

palikas under Schedules 11 and 12, and subject further to the increasing

participation of civil society institutions in water management at every

level. The proposed national water law will not be a managerial or

command-and-control law but a framework law. It will provide a

framework within which decisions and actions will be taken by various

levels of governance in exercise of their own powers.

The question may still be asked: why do we need a national

framework law? Many countries in the world have national water laws or

codes, and some of them (for instance, the South African National Water

Act of 1998) are widely regarded as very enlightened. There is also the

well-known European Water Framework Directive of 2000. The

considerations behind those national or supra-national documents are

relevant to India as well. However, let us leave that argument aside15 and

confine ourselves to the national context. Consider the following points.

• We already have a number of national laws on important subjects

such as the environment, forests, wildlife, biological diversity, etc.

Water is as basic as (if not more basic than) these subjects. Is it so

15 See Annexe III for a fuller discussion.

31

very strange to propose a National Water Act? (We are concerned

here only with the nature of the subject, and not with the Centre’s

legislative power; we shall return to the latter point.)

• Several States are enacting laws on water and related issues.

These can be quite divergent in their perceptions of water. For

instance, one State may see water as CPR to be held by the state in

public trust; another State may regard water as a commodity to be

left to market forces; a third State may consider water to be the

property of the state. Is such divergence desirable or manageable?

• Under a number of Projects and Programmes different States are

obtaining World Bank or ADB funds for `reforms’ in the `water

sector’. As a part of this they are required to formulate State Water

Policies, and we have the Orissa Water Policy, the Tamil Nadu

Water Policy, and so on. Here again, significant divergences are

possible. Conformity to the National Water Policy is not a binding

requirement.

• Different State Governments tend to adopt different positions on

riparian rights in the context of inter-State river-water disputes.

The upper riparians tend to favour the Harmon doctrine, whereas

the lower riparians tend to assert prescriptive rights, prior

appropriation, etc. If each State were to enact a law reflecting its

own position, there would be utter confusion, and inter-State river-

water disputes would become even more intractable than they are

now. Some kind of a national position on the principles that

should govern such cases seems desirable, though a consensus

might be very difficult to achieve. Tribunals have generally been

adopting the principle of equitable sharing for beneficial uses, but

there might be some advantage in embodying some such statement

in a law. Such a law can only be a Central law.

32

• It was a recognition of the need for a minimal national consensus

on certain basic perceptions, concepts and principles that led to

the adoption of the National Water Policy of 1987 and the new NWP

of 2002. What is being suggested is merely that the NWP be revised

substantially (or redrafted) and given a statutory status.

• The tabular statement in section IV above proposes a number of

policy changes. If they (or some of them) are accepted, several of

them will call for legislation. The issues are not State-specific. A

series of State-level laws will not serve the purpose. National

legislation will be necessary.

What the proposed National Water Act will do is to state or lay down or

embody (as the case may be) the following, among other things:

• a perception of the complexity and multi-dimensionality of water;

• a consensus position on the harmonisation of the different roles of

water (life-support, economic good, etc) and the primacy of water

as life-support;

• the relationship between the fundamental right to water and the

economic water rights to various uses;

• the nationally accepted understanding (if there is one) of the

respective roles of the state, civil society or community, and the

market, in relation to water;

• the public trust doctrine (if that be the national consensus);

• the bringing of rivers, lakes, ponds, groundwater, and other forms

of water on to one common legal basis;

• principles to govern water-allocations to and water-sharing

between different uses, areas, sectors, States;

• principles to govern the pricing of water in various uses; and so on.

33

These matters have been discussed or referred to in earlier sections. It

will be seen that none of this will entail the issue of permits or licences or

clearances by the Central government. What is intended is a kind of

umbrella legislation under which laws will be enacted, policies framed,

rules and orders issued, and executive decisions and actions taken, at

different levels. Those laws, policies, actions, etc, will have to conform to

the provisions of the umbrella legislation, and the National Water Act will

of course be justiciable.

The case for an umbrella or framework law on water at the national

level seems self-evident. However, given the structure of entries relating

to water in the Constitution, can such a law be enacted by Parliament?

There are two ways in which this can be done. One is to shift water to the

Concurrent List first. This is discussed in Annexe I. The other way is to

follow the route through which other Central legislation on subjects that

are within the State domain has been enacted. An example is the Water

(Prevention and Control of Pollution) Act 1974. If the necessity for a

national water law is acknowledged, then ways and means of enacting it

can be found with the assistance of experts.

C. Constitutional Declarations on Water

Assuming that the case for a National Water Act is accepted, why

is it necessary to incorporate declarations about water in the

Constitution?

When the Constitution was being drafted, there was no serious

worry about an impending water scarcity; ecological concerns lay in the

distant future; water essentially meant rivers; canal irrigation loomed

large; it was looked at through the eyes of engineers; and the principal

concern was about inter-State river-water disputes. That limited

perspective is reflected in the entries relating to water in the Constitution

(Entry 17 in the State List, Entry 56 in the Union List, and Article 262).

Perceptions of water as essential life-support or a basic right; as multi-

34

dimensional, having social, cultural and other aspects; and as an

integral part of the ecological system; were perhaps not widespread at the

time. The situation is vastly different today. Water is now considered

extremely important, and its multi-dimensionality has become part of

conventional wisdom. The perception of the importance of water, growing

steadily over the last two decades, has now acquired an additional

urgency because of the phenomenon of climate change which can no

longer be ignored. It is a crucial resource; it is going to be under

increasing pressure; conflicts over water are likely to increase; and the

economical use, protection and conservation of water are matters of the

greatest national and global importance. It seems self-evident that there

should be a declaratory statement regarding water in the Constitution.

It must be noted that the Constitution does refer to forests, wildlife

and the environment. If it does not contain a similar statement regarding

water, it can be only because the fundamental importance of water was

not adequately realised earlier. Attention is invited to the significant

statements about water in the preamble to the EU Water Framework

Directive of 2000, the South African Constitution of 1996 and National

Water Act of 1998 and the Venezuelan Constitution, cited in Annexe III.

There is no comparable statement in the Indian Constitution. Given the

fundamental importance of water, and the urgency of economising on its

use and conserving the resource, it seems clear beyond question that in

both the Directive Principles and the Fundamental Duties sections of the

Constitution, there should be carefully drafted statements about water.

The statement or declaration in the Directive Principles section will

be about the complex and multi-dimensional nature of water; its crucial

importance to life and livelihoods; its role in the ecological system and on

Planet Earth; its finiteness in nature and the growing pressure on it; its

roles in society, culture, history and religion; and the responsibility of the

state in protecting and preserving it and ensuring harmony in its use

35

(harmony between groups, areas, uses, countries, species and

generations, and between humanity and Nature).

The statement in the Fundamental Duties section will cast a

responsibility on the citizens for economical use, avoidance of waste,

resource-conservation, protection from pollution and contamination, and

a spirit of harmonious sharing rather than conflict and contestation.

These cannot of course be detailed discourses; they will have to be

brief, compressed entries, which could then be elaborated elsewhere.

D. How Should We Proceed?

If a transformation of water law on the lines recommended above is

accepted in principle, how should we proceed? The following is a

tabulated summary of the changes recommended in this section, and an

indication of the steps and processes that would be needed:

Recommendation Steps/Processes Remarks

1. Putting water

into the

Concurrent List

Constitutional

amendment

Logically right,

but politically

difficult.

2. Statements

about water in the

Directive

Principles of State

Policy and in the

Fundamental

Duties parts of the

Constitution

Draft the

Statements, get

a national

consensus, make

amendments to

the Constitution

Putting water in

the Concurrent

List is not a

necessary pre-

condition for

this.

3. A National

Water Act setting

forth certain basic

Get general

agreement on

the idea of a

This might be

easier if water

were in the

36

propositions

regarding water

and providing a

framework for

legislation, policy-

making and

executive action at

various levels.

National Water

Act; decide on

what should go

into it; draft the

Bill; get

resolutions by

State

Legislatures, if

necessary; get

the Bill enacted

by Parliament.

Concurrent

List, but that is

not a necessary

precondition.

The procedure

appropriate for

Central

legislation on a

subject that is

in the State List

will have to be

followed.

4. Explicit

declaration of the

right to water

(including the

right of access to

water sources),

and privileging it

over economic use

rights.

Constitutional

amendment;

alternatively,

include in the

National Water

Act

5. Empowering

civil society to

play its role in

water

management, and

moderating the

sovereign power of

the state for this

purpose.

Include in the

National Water

Act

State Acts

asserting

ownership of

water resources

or sovereign

power (eminent

domain) over

water may have

to be over-

37

ridden. Consult

Law Ministry.

6. Water (in all its

forms) to be

regarded as a

common pool

resource; the state

to hold water and

other natural

resources in

public trust for

the community.

See 5 above. See 5 above.

See also 12

below.

7. Further

amendments to

the Inter-State

Water Disputes

Act (a) to lay down

time-limits for the

tribunal’s

supplementary or

clarificatory

report, and for the

notification of the

tribunal’s orders

by the

Government of

India, (b)

empowering the

tribunals to

change their style

Self-evident

38

of functioning,

and (c) partially

modifying the bar

on the jurisdiction

of the Courts and

providing for an

appeal to the

Supreme Court

against the

tribunal’s Award.

8. A declaration of

water-sharing

principles.

Include in the

National Water

Act

9. The Centre to

make better use of

Entry 56 in the

Union List, and

re-activate the

River Boards Act

1956.

Self-evident Political action

10. A legal basis

for institutional

arrangements for

holistic

coordination at

the river-basin

level.

Draft legislation.

Work out design

of nested set of

institutions

federating

upwards from

the micro-

Political:

persuade State

Governments to

go along.

39

watershed to the

river basin.

Action under

Entry 56 of the

Union List for

each major inter-

State river, or

alternatively,

under the River

Boards Act 1956.

11. State-level

legislation for

principles and

institutional

arrangements for

entitlements,

priorities,

regulation,

dispute-

resolution, etc.

Self-evident.

Centre can

provide a

standard draft.

12. Moving away

from land-linked

private property in

groundwater

towards (a)

treating

groundwater as a

community

resource held in

(a) Include in the

National Water

Act.

(b) Delineate

aquifers.

Promote aquifer

associations.

For (a), the need

for amending

the Indian

Easement Act

and the

Transfer of

Property Act

may have to be

considered.

40

trust by the state

and (b) a system

of community

management of

aquifers.

For (b), action

by each State

Government;

legislation on

the analogy of

the PIM Acts;

overall advice

and

coordination by

the CGWA.

13. Legal support

for the restoration

and re-activation

of tanks and other

traditional water

management

systems.

Action by the

State

Governments

concerned.

Overall advice

and

coordination by

the Ministries of

Water

Resources and

Rural

Development?

14. Considering a

statutory

clearance for

dams.

Ministries of WR

and E&F to

consider in

consultation

with the Law

Ministry.

15. Making EIAs

more objective,

rigorous and

professional;

providing them

with a statutory

Action by MoEF.

Under EPA? Or

Include in the

proposed

legislation for a

National

41

basis; making

them independent

of project

planners,

approvers and

managers; making

Environmental

and Forest

Appraisal

Committees truly

independent and

professional.

Environment

Protection

Authority? Or a

separate

legislation for

EIAs?

16. Enacting the

Rehabilitation and

Land Acquisition

Amendment Bills

after rectifying

deficiencies, and

bringing them into

force.

Self-evident.

Action by M/RD.

42

Annexe I. A Note on the question of shifting water to the Concurrent List

Note: This note draws upon a paper submitted by this writer to the second Commission on Centre-state Relations.

Broadly speaking, having regard to Entry 17 in the State List and

Entry 56 in the Union List, it could be said that water is primarily a State

subject in the Indian Constitution, but that the Constitution gives a

potential role to the Central Government in relation to inter-State rivers

to the extent that Parliament legislates for the purpose. The question is

whether this is a sound division. The Sarkaria Commission thought so.

The National Commission on Integrated Water Resource Development

Plan, in its Report (1999) expressed some doubts but did not recommend

any change. The Report of the National Commission to Review the

Working of the Constitution (NCRWC) is silent on this issue. Now the

question is before the second Commission on Centre-State Relations.

There is a view that the structure of entries relating to water in the

Constitution is not appropriate; that it limits the role that the Centre can

play; and that water should be shifted to the Concurrent List. The Union

Ministry of Water Resources has held this view for a long time. The

present writer has in the past argued against that view on two grounds:

(a) that it would be politically very difficult if not impossible to enact a

constitutional amendment to put water in the Concurrent List at this

stage, though it might have made sense to do so at the time of the

drafting of the Constitution; and (b) that it is not really necessary to do

so because that would only enable the Centre to legislate on water, which

the Centre can do even now under Entry 56 in the Union List relating to

inter-State rivers. He still holds those views, but it must be noted that

the argument is practical rather than legal. If one asks what the right

course would be, i.e., what the right structure of entries would be if we

were writing the Constitution now, the obvious answer is that water

should be in the Concurrent List. There are two main reasons for saying

so.

43

First, if we are thinking primarily of river waters and of irrigation,

as the Constitution-makers seem to have been doing, it might appear

appropriate to assign the primary role to the States, and provide a

specific role for the Centre in relation to inter-State rivers. However, even

from that limited perspective, most of our important rivers are in fact

inter-State, and inter-State (or inter-provincial) river water disputes were

an old and vexed problem even at the time of the drafting the

Constitution: a primary rather than a secondary or exceptional role for

the Centre might well have been warranted. Further, even in single-State

rivers, interventions might have consequences beyond the boundaries of

the State in question.

Secondly, Entry 56 in the Union List is only about inter-State

rivers and does not enable the Centre to legislate on water per se. Water

is larger than rivers; ponds and lakes, springs, groundwater aquifers,

glaciers, soil and atmospheric moisture, and so on, are all forms of water

and constitute a hydrological unity; and there is more to water than

irrigation. If the environmental, ecological, social/human, and rights

concerns relating to water had been as sharply present to the makers of

the Constitution as they are to us, it seems very probable that the entries

in the Constitution would have been different. Besides, many laws and

rules not directly about water have a bearing on water.

The theoretical case for water being in the Concurrent List is very

strong indeed. Of all the subjects that are or ought to be in the

Concurrent List, water ranks higher than any other. The practical and

political difficulties of shifting it there remain, but these would need to be

overcome.

However, if a constitutional amendment to put water into the

Concurrent List seems politically impossible, then we have to settle for

the second best course of greater use by the Centre of the legislative

powers relating to inter-State rivers provided for in Entry 56 in the Union

44

List, and of re-activating the dormant River Boards Act 1956. Even this

‘second best’ course, however, would still entail considerable political

effort.

45

Annexe II. Copy of Article published in The Hindu, 7 August 2009,

under the title ‘A Slow but Sure Step Forward’

THE REHABILITATION AND LAND ACQUISITION AMENDMENT BILLS

Ramaswamy R. Iyer

The debate about the displacement of people caused by various

developmental projects has been going on for over two decades. Without

going into that history in detail, we may note that the Government of

India finally notified the National Rehabilitation and Resettlement Policy

2007 in October 2007, and followed that up with the Rehabilitation and

Resettlement Bill 2007 and the Land Acquisition (Amendment) Bill 2007.

Those Bills have lapsed and have now to be introduced afresh in the new

Lok Sabha. There have been reports that the Railway Minister Mamata

Banerjee is unhappy with the Bills. There have also been protests against

the Bills by many NGOs.

Superficially, the Bills seem to include a number of good elements.

There was a demand for a Rehabilitation Act and here is a Bill; the

much-criticised Land Acquisition Act is being amended; ‘public purpose’

is being re-defined; governmental acquisition of land for private parties is

being reduced; ‘minimum displacement’, ‘non-displacing alternatives’,

consultations with the people likely to be affected, and so on, find a place

in the Rehabilitation Bill; a Social Impact Assessment is provided for; an

Ombudsman is being provided for the redress of grievances; and a

National Rehabilitation Commission is envisaged. Why then are the Bills

not being welcomed?

Let us consider the Land Acquisition Amendment Bill first. At first

sight, the deletion of all references to companies gives us the impression

that acquisition by the state for private parties is being eliminated, but

that is not the case. The original Act had the wording “for a public

46

purpose or for a company”; the words “or for a company” are now being

omitted; but the definition of “public purpose’ itself is being changed to

include a (supplementary) acquisition for “a person” (including a

company). If the private party purchases 70% of the required land

through negotiation, the balance 30% can still be acquired by the

Government for that party. This means that sovereign compulsion will be

brought to bear on those who are not inclined to sell their land, and also

that state patronage for industrial houses can continue. Incidentally, it

will be seen that the definition of ‘public purpose’, instead of being made

stringent and narrow as many had recommended, is being widened.

Moreover, it was necessary not merely to rule out (or limit) the

acquisition of land for private parties under the Land Acquisition Act, but

also to ensure that rural communities are not taken advantage of by

corporate bodies in unequal negotiations. There is no such provision in

the Bill.

Judging by its name, The Land Acquisition Compensation Disputes

Settlement Authority will apparently deal only with compensation issues.

A longstanding criticism of the Land Acquisition Act has been that the

‘public purpose’ for which land is being acquired is not open to

contestation. There seems to be no change in that position.

One wonders whether the bar on the jurisdiction of the civil courts

and the establishment of a Dispute Settlement Authority instead is in

fact a good thing to do. There is room for misgivings here.

Turning now to the Rehabilitation Bill, the provision for a Social

Impact Assessment seems very good, but the impacts are rather narrowly

confined to physical assets (buildings, temples), institutions, facilities,

etc. Social impacts must be more broadly understood to include the loss

of identity; the disappearance of a whole way of life; the dispersal of

close-knit communities; the loss of a centuries-old relationship with

nature; the loss of roots; and so on. It is good that the SIA will be

reviewed by an independent multi-disciplinary expert body, but it should

47

first be prepared by a similar body. The provision for a Social Impact

Assessment clearance is good, but not enough: it should be part of an

overall clearance for displacement. If the felling of trees and interference

with wildlife and nature in general require statutory clearances, should

not the displacement of people be subject to a similar requirement?

Such a clearance must come from an independent statutory authority

and not from the bureaucracy. The clearance must of course be subject

to certain conditions and must be revocable in the event of non-

compliance or lapses; and the revocation clause should be actually used.

The terms ‘minimum displacement’ and ‘non-displacing alternative’

are music to the ears, but the application of this criterion is left to a late

stage when the consideration of options may no longer be possible, and

the decision is left to the Administrator for R&R. In other words, this

crucial decision is entrusted to the bureaucracy.

An impressive structure of institutions has been specified, but

their responsibilities and powers have not been spelt out. Administrator,

Commissioner, project-level and district-level R&R Committees,

Ombudsman, Monitoring and Oversight Committees, National R&R

Commission: what each will do, how they will be inter-related, what

decision-making powers each will have and in relation to what aspects,

and so on, are far from clear. Everything is covered by the phrase “as

may be prescribed”.

Words such as “wherever possible”, or other similar phrases are

scattered throughout the Bill. For instance, group settlement is laid

down, but qualified by the phrase “wherever possible”; training is to be

provided “wherever necessary”; there are also qualifications such as “if

government land is available”, “preferably”, and so on. They seem

innocuous, but all of them involve decisions. Such hedged-in

requirements can hardly be mandatory: they are likely to become

discretionary, with the discretion vesting in the bureaucracy.

48

The Ombudsman provision is a good one, but ‘grievance’ has been

narrowly defined to cover only the case of “not being offered the benefits

admissible”. Grievances could relate to many other things: non-

participatory project decision, failures of consultation, non-compliance

with the minimum displacement condition, non-inclusion of a person in

the ‘affected’ category, and so on. How the Ombudsman will be

appointed, how the Ombudsman will function, etc, are left to be

‘prescribed’.

Taking the preceding points together, it appears that the precise

manner in which this seemingly benign and enlightened legislation will

actually work in practice will be entirely determined by the delegated /

subordinate legislation, i.e., the rules that are made under it.

The National Monitoring Committee seems totally bureaucratic,

except for the non-mandatory association of some experts (the operative

word is “may”). No civil society or NGO participation seems envisaged.

In the case of the Sardar Sarovar Project the basic principle in

force (though it may not always be complied with) is: rehabilitation must

precede submergence. The present Bill retreats from that position and

requires only “adequate progress in rehabilitation” prior to displacement.

This is a retrograde step. Besides, who will decide the adequacy of the

progress?

The elements of the rehabilitation ‘package’ seem inferior to the

policies already adopted in projects such as Sardar Sarovar and Tehri.

Moreover, cash in lieu of land is envisaged in several places. This is

fraught with danger. Eventually, cash may well become the main form of

compensation.

In the event of deliberate or inadvertent lapses or non-compliance

or deviations, what consequences will follow? The Bill is silent on this.

Without such sanctions, how can the provisions be enforced? Far from

sanctions for non-compliance, there is a sweeping indemnity provision!

49

In addition to those primary points, there are many others, some of

them quite important, that need consideration. They cannot be set forth

in detail here for want of space.

The conclusion that emerges from this quick examination of the

two Bills is that there are many weaknesses and questionable features in

these Bills which need to be rectified. Opposition to the Bills is therefore

warranted. However, the very fact that the Government is thinking of a

rehabilitation law and of amending the Land Acquisition Act is an

achievement for public opinion. It has taken more than two decades for

the debate to reach this stage. Opposition to the Bills should be carefully

modulated so that we can proceed further from here and not lose what

has been gained.

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50

Annexe III. South African, Venezuelan and European Union

Examples, and a Comment on MWRRA

South African Water Law

In drafting its new constitution the post-apartheid regime in South

Africa wanted to remove the inequities and injustices of the past. In

relation to water this meant the removal of the private ownership of

water as well as of inequities in access to it. This led to two features in

South African law, namely, the recognition of the right to water, and the

adoption of the public trust doctrine (i.e., the doctrine that the state is

the custodian of water and other natural resources for the community

and holds them in public trust). The first is enshrined in the South

African Constitution of 1996 (articles 24 and 27), and the second in the

South African National Water Act of 199816.

As the adoption of the public trust doctrine meant the

discontinuance of the old rights (private, riparian, etc), new water use

rights had to be introduced and these had to ensure equity. This was

sought to be done through a system of entitlements. All users were

required to reapply for their water use entitlements, and a fairer

allocation of water between competing users and sectors was sought to

be ensured through a process. However, as the poor and the

disadvantaged were not able to participate in the process and apply for

entitlements, a system of General Authorisations was adopted as a way

of addressing these concerns by setting water aside for specific categories

of users.

16 Article 24 of the South African Constitution of 1996 says that “everyone has the right….. to have the

environment protected, for the benefit of present and future generations, through reasonable legislative and

other measures that …..secure ecologically sustainable development and use of natural resources while

promoting justifiable economic and social development”. Article 27 lays down that “everyone has the right to

have access to….sufficient food and water”. Section 3 of the South African National Water Act of 1998

declares the National Government to be “the public trustee of the nation’s water resources”.

51

It is rather curious that despite the adoption of the public trust

doctrine and the declaration of a right to water, South Africa was

influenced by prevalent economic thinking into undertaking the

privatization of water services, accompanied by water-pricing on the ‘full

cost recovery’ principle. As the very poor could not pay the new rates,

many of them were disconnected from the service for non-payment, and

the consequent recourse to unsafe water sources led to an outbreak of

cholera. It was in response to this that President Thabo Mbeki

announced a Free Basic Water Policy in 2001. Under this policy, on the

basis of 25 litres per capita per day and 8 persons per family, the

provision of 6000 litres per month to a household free of charge was

envisaged.

Venezuela

Article 127 of the Venezuelan constitution runs as follows:

“Article 127: It is the right and duty of each generation to protect and

maintain the environment for its own benefit and that of the world of the

future….. It is a fundamental duty of the State, with the active

participation of society, to ensure that the populace develops in a

pollution-free environment in which air, water, soil, coasts, climate, the

ozone layer and living species receive special protection, in accordance

with law.”

European Water Framework Directive 2000

This is a comprehensive document addressed to member States of

the EU containing detailed provisions on a wide range of matters such as

quantitative and qualitative status, ecological status, economic analysis,

transboundary issues, and so on, with the ultimate objective of achieving

“good water status” (for all forms of water) within 15 years. For our

present purpose, we need to take note of two points.

52

The first is the important statement in the preamble to the

Directive that “water is not a commercial product like any other but,

rather, a heritage which must be protected, defended and treated as

such.” This runs counter to the prevailing economic orthodoxy, and may

even be regarded as modifying the fourth of the Dublin principles (‘Water

has an economic value in all its competing uses and should be

recognized as an economic good’).

The second is that the Directive envisages the river basin as

central to all the actions that it requires member States to take17. As the

17 Article 3

Coordination of administrative arrangements within

river basin districts

1. Member States shall identify the individual river basins

lying within their national territory and, for the purposes of

this Directive, shall assign them to individual river basin

districts. Small river basins may be combined with larger river

basins or joined with neighbouring small basins to form

individual river basin districts where appropriate. Where

groundwaters do not fully follow a particular river basin, they

shall be identified and assigned to the nearest or most

appropriate river basin district. Coastal waters shall be

identified and assigned to the nearest or most appropriate river

basin district or districts.

2. Member States shall ensure the appropriate

administrative arrangements, including the identification of the

appropriate competent authority, for the application of the

rules of this Directive within each river basin district lying

within their territory.

3. Member States shall ensure that a river basin covering

the territory of more than one Member State is assigned to an

international river basin district. At the request of the Member

States involved, the Commission shall act to facilitate the

assigning to such international river basin districts.

Each Member State shall ensure the appropriate administrative

arrangements, including the identification of the appropriate

competent authority, for the application of the rules of this

Directive within the portion of any international river basin

district lying within its territory.

4. Member States shall ensure that the requirements of this

Directive for the achievement of the environmental objectives

53

laws and institutional arrangements in several member States are based

on administrative and not hydrological divisions, adjustments will need

to be made over a period to conform to the basin as the unit for planning

and management.

Relevance to India

From these examples a few points arise for consideration.

The first is that on the analogy of (but not necessarily reproducing)

the statements in the European Water Framework Directive and the

South African Constitution, it would be useful to make a formal and

established under Article 4, and in particular all programmes

of measures are coordinated for the whole of the river basin

district. For international river basin districts the Member

States concerned shall together ensure this coordination and

may, for this purpose, use existing structures stemming from

international agreements. At the request of the Member States

involved, the Commission shall act to facilitate the

establishment of the programmes of measures.

5. Where a river basin district extends beyond the territory

of the Community, the Member State or Member States

concerned shall endeavour to establish appropriate

coordination with the relevant non-Member States, with the

aim of achieving the objectives of this Directive throughout

the river basin district. Member States shall ensure the

application of the rules of this Directive within their territory.

6. Member States may identify an existing national or

international body as competent authority for the purposes of

this Directive.

7. Member States shall identify the competent authority by

the date mentioned in Article 24.

8. Member States shall provide the Commission with a list

of their competent authorities and of the competent authorities

of all the international bodies in which they participate at the

latest six months after the date mentioned in Article 24. For

each competent authority the information set out in Annex I

shall be provided.

9. Member States shall inform the Commission of any

changes to the information provided according to paragraph 8

within three months of the change coming into effect.

54

clear statement regarding the nature and importance of water in the

Constitution of India. Such a statement would provide a basis for all

future water policy and planning.

Secondly, the explicit declaration of the right to water in the South

African Constitution seems worthy of emulation. The Free Basic Water

Policy of South Africa also seems a good example to follow.

Thirdly, the South African system of entitlements or authorisations

is interesting as a means of ensuring both equity and sustainability, but

it is not clear whether it would be possible to adopt it without running

the risk of centralisation and bureaucratisation and increasing state

control. It is necessary to explore modalities of regulation of water use

that would depend less on command and control by the state and more

on community regulation and social sanctions.

Fourthly, the stress on planning and management within a

framework of river basins in the European Water Framework Directive is

in consonance with similar statements in some of our own policy

documents. Unfortunately, the idea has made little headway in India. It

is necessary to persuade our politicians to accept the essential

soundness of this approach.

The Maharashtra Water Resources Regulatory Authority (MWRRA)

Two important features mentioned above, namely, the idea of

entitlements or authorisations and that of the river basin as the basis for

management, are present in the MWRRA scheme. However, that is a

superficial similarity. The MWRRA draws its inspiration not from the

South African or European model but from the World Bank’s ideas of

‘water sector reform’. It is based on a view of water as a commodity, and

behind its idea of entitlements (water rights) lies that of tradability. It is

much concerned with water tariffs, and adopts the principle of ‘full cost

recovery’. More than anything else, what causes concern is that it

reinforces state control. The appearance of an independent Authority

55

distanced from the state is misleading because the MWRRA is dominated

by bureaucrats. The regulation that it envisages seems no different from

old-style control, though it may be exercised by an Authority and not by

a Government Department. Its system of entitlements may well become a

newer version of the ‘permit-licence raj’, and it seems likely to proceed in

the direction of centralisation and bureaucratisation rather than in that

of ‘people’s participation’ or a greater role for the community. It is also

not clear how a State-level statutory Authority on water will function in

harmony with the idea of democratic decentralisation and the devolution

of water management to PRIs.

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